The Modern History of the Law of Nature
It will be inferred from what has been said that the theorywhich transformed the Roman jurisprudence had no claim tophilosophical precision. It involved, in fact, one of those"mixed modes of thought" which are now acknowledged to havecharacterised all but the highest minds during the infancy ofspeculation, and which are far from undiscoverable even in themental efforts of our own day. The Law of Nature confused thePast and the Present. Logically, it implied a state of Naturewhich had once been regulated by natural law; yet thejurisconsults do not speak clearly or confidently of theexistence of such a state, which indeed is little noticed by theancients except where it finds a poetical expression in the fancyof a golden age. Natural law, for all practical purposes, wassomething belonging to the present, something entwined withexisting institutions, something which could be distinguishedfrom them by a competent observer. The test which separated theordinances of Nature from the gross ingredients with which theywere mingled was a sense of simplicity and harmony; yet it wasnot on account of their simplicity and harmony that these finerelements were primarily respected, but on the score of theirdescent from the aboriginal reign of Nature. This confusion hasnot been successfully explained away by the modern disciples ofthe jurisconsults, and in truth modern speculations on the Law ofNature betray much more indistinctness of perception and arevitiated by much more hopeless ambiguity of language than theRoman lawyers can be justly charged with. There are some writerson the subject who attempt to evade the fundamental difficulty bycontending that the code of Nature exists in the future and isthe goal to which all civil laws are moving, but this is toreverse the assumptions on which the old theory rested, or ratherperhaps to mix together two inconsistent theories. The tendencyto look not to the past but to the future for types of perfectionwas brought into the world by Christianity. Ancient literaturegives few or no hints of a belief that the progress of society isnecessarily from worse to better.
But the importance of this theory to mankind has been verymuch greater than its philosophical deficiencies would lead us toexpect. Indeed, it is not easy to say what turn the history ofthought, and therefore, of the human race, would have taken, ifthe belief in a law natural had not become universal in theancient world.
There are two special dangers to which law and society whichis held together by law, appear to be liable in their infancy.
One of them is that law may be too rapidly developed. Thisoccurred with the codes of the more progressive Greekcommunities, which disembarrassed themselves with astonishingfacility from cumbrous forms of procedure and needless terms ofart, and soon ceased to attach any superstitious value to rigidrules and prescriptions. It was not for the ultimate advantage ofmankind that they did so, though the immediate benefit conferredon their citizens may have been considerable. One of the rarestqualities of national character is the capacity for applying andworking out the law, as such, at the cost of constantmiscarriages of abstract justice, without at the same time losingthe hope or the wish that law may be conformed to a higher ideal.
The Greek intellect, with all its nobility and elasticity, wasquite unable to confine itself within the strait waistcoat of alegal formula; and, if we may judge them by the popular courts ofAthens of whose working we possess accurate knowledge, the Greektribunals exhibited the strongest tendency to confound law andfact. The remains of the Orators and the forensic commonplacespreserved by Aristotle in his Treatise on Rhetoric, show thatquestions of pure law were constantly argued on everyconsideration which could possibly influence the mind of thejudges. No durable system of jurisprudence could be produced inthis way. A community which never hesitated to relax rules ofwritten law whenever they stood in the way of an ideally perfectdecision on the facts of particular cases, would only; if itbequeathed any body of judicial principles to posterity bequeathone consisting of the ideas of right and wrong which happened tobe prevalent at the time. Such a jurisprudence would contain noframework to which the more advanced conceptions of subsequentages could be fitted. It would amount at best to a philosophymarked with the imperfections of the civilisation under which itgrew up.
